July 23, 2013 | 3
Earlier, I presented four artworks derived from my photographs and asked your opinion as to whether each case could be defended as Fair Use. Without lawsuits to force courts into a decision, there are no unambiguously correct answers. Predictably for such a contentious topic, your opinions spanned the gamut from all Fair Use to all unacceptable.
Here is what I think of each, as well as how each case was resolved.
This stock drawing is the most obviously commercial of the derivative works, as the image itself is being offered for sale. I discovered it in a Google search for “ant drawing”. A majority of you thought this image was altered enough to be acceptable.
My opinion: Although my photograph clearly inspired the ant’s pose, the cartoon styling & the ant’s anthropomorphized head dramatically transform the image’s essence. I think this piece is transformative and hence, Fair Use. The drawing is also unlikely to sell into the same market as my photograph, so economic damages from this would be unlikely.
Action taken: None necessary.
The Killer Ants painting involved, as far as I can tell, the greatest amount of money and the least amount of transformation. Illustrator Emma Stevenson was paid $7,000 to provide about 20 illustrations for the book. Eight of these, including the leafcutter here, were copied with little change from my photographs.
My opinion: This derivative work is the most clearly infringing of the examples, and most of you agreed. The painting serves the same illustrative function as my photograph, the image is scarcely altered, my permission was not sought, and the artist was paid.
Action taken: I contacted the illustrator and the publisher. The illustrator never responded, but she quietly removed the more egregious examples of infringement from her site. Oddly, she left most of the rest. I remain unimpressed. The publisher, Holiday House, was genuinely horrified and dealt with the matter quickly and professionally. I was paid at an equal rate per image to the illustrator, and if a subsequent edition of the book is released, I will be added to the credits. I consider the issue resolved.
The street art jumped out in a recent Google search for “ants”. The photograph was taken by Peggy Reynolds, whose portfolio you need to see for the wonderful monochrome images. The artist is unknown. Most of you thought this derivation was acceptable, although some had concerns over whether the artist was paid.
My opinion: The medium and loosely painted style of this version transcend my original portrait of a fire ant. This is transformative Fair Use in my book.
Although my personal opinion of the art is not relevant to its legal status, I love this piece. I also love Reynold’s photograph of the piece, and would be more inclined to hang it on my wall than I would my original ant.
Action taken: None necessary.
Bizarro’s header fly was shared into my facebook stream over the weekend. I immediately recognized it. The original photograph was produced as part of a commissioned shoot for BASF, although it was not an image BASF ended up purchasing. But I have a particular fondness for this picture, as I spent a great deal of time experimenting with the perfect angle to illustrate the species. You were split on whether Dan Piraro’s copy was infringing, with a slight majority siding against Fair Use.
My opinion: Piraro brought his uniquely talented style to the illustration, and this adaptation is the strongest argument in favor of Fair Use. But I find it is not quite enough. Piraro’s purpose for the fly as a stand-alone in the header is illustrative, rather than editorial, and as such I find the image’s function overly similar to the original. Piraro argues in his blog that this wasn’t that commercial, but- how do I put it- that is kind of stupid. He’s a nationally syndicated cartoonist. That he might not be paid very much would be relevant to determining damages in a copyright suit, but not for deciding whether the copy is infringing.
I like Piraro’s adaptation, though, and considering the severity of the alternation I don’t feel license fees are necessary, nor do I think his copy will result in noticeable economic damages. But I wish he’d asked first.
Action taken: I had trouble finding Piraro’s private contact information, so I left a comment on his blog requesting what I would have asked had he contacted me ahead of time: a simple acknowledgement on his website. Piraro, to his credit, was gracious in his reply and open to discussion. He complied with my request, opened a post on the incident that sparked a surprising amount of productive commentary. I’d say we ended on a win-win-win.
Finally, my reproduction of all four images in this post should be considered Fair Use, as they are editorial commentary on the works themselves.
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